In March this year, the Supreme Court delivered its long-awaited judgment in the case of Tomlinson-Blake v Royal Mencap, answering the question of how time spent on sleep-in shifts should be treated for the purposes of calculating national minimum wage (NMW).
A number of cases had come before the courts and employment tribunals over recent years, some of which were difficult to reconcile and left employers unclear about whether or not every hour of a sleep-in shift counted as working time for NMW calculations. Charities and other care providers faced the prospect of liabilities running into the millions of pounds for back-pay and arrears of tax, which would have pushed some to the point of insolvency.
What was it all about?
Mrs Tomlinson-Blake was employed by Mencap as a Care Support Worker. She was part of a team that provided round-the-clock care to two adults with learning difficulties in their home. During sleep-in shifts she had to remain in the homes and, in her words, “keep a listening ear out” in case she was needed.
Sleep-in shifts lasted for nine hours for which Mrs Tomlinson-Blake was paid an allowance of £22.35 plus one hour’s pay; a total of £29.05. If she was woken in the night, she would not receive pay for the first hour of work, but would be paid her hourly rate for any additional time when she was required to provide care.
Mrs Tomlinson-Blake was supported by her trade union, UNISON, to bring a claim in the employment tribunal seeking NMW for the full duration of each sleep-in shift. She succeeded and the decision in her favour was also upheld by the Employment Appeal Tribunal. When the case reached the Court of Appeal, however, it was overturned. UNISON then sought leave to appeal to the Supreme Court.
The Supreme Court unanimously agreed with the Court of Appeal’s decision that Mrs Tomlinson-Blake was not entitled to be paid the NMW for all of the time when she was on a sleep-in shift; only time spent actually working counts for these purposes.
In reaching this decision, the Supreme Court took a strict approach to interpreting the NMW legislation in line with reports given to the Government by the Low Pay Commission.
Overruling earlier cases in the Court of Appeal and Court of Session, the Supreme Court confirmed that a worker who has to be available at a place of work where suitable sleep facilities are provided is only paid the NMW for the time when they are awake in order to carry out actual work.
Giving her reasons, Lady Arden commented that the statutory test must be applied “without any preconception as to what should entitle the worker to a wage”, perhaps acknowledging the difficulty in cases like this of setting aside considerations about what we think care workers deserve to be paid.
In its response to the judgment, UNISON said it will push for a change in the law, noting that vacancy rates are already very high in the care sector. Royal Mencap also echoed these concerns, saying it believes the legislation covering sleep-in payments to be out of date and unfair.
Last year over 80 organisations including the National Care Association, Care and Support Alliance, Carers UK, Alzheimer’s Society and UNISON came together to create the Future Social Care Coalition, calling for a fair wage deal for low-paid staff. Although the Supreme Court’s judgment marks the end of the road for Mrs Tomlinson-Blake’s case, the campaign to change the way that care workers are paid for sleep-in shifts seems set to continue.
What next for charities?
Royal Mencap says that it plans to continue to make top-up payments for sleep-in shifts to its staff and urged Local Authorities to continue to cover this in their contracts.
This reflects the practice of several charities in the care sector that had already increased pay for sleep-in shifts in light of earlier cases. Some even made back-payments to staff to compensate for perceived historic underpayments of the NMW. It is likely to be difficult to reverse contractual changes to pay and impossible to recoup compensation in the majority of cases.
Charities that joined the Government's Social Care Compliance Scheme, which aimed to help social care employers manage the underpayments of tax that would have fallen due if the decision had not gone in Royal Mencap’s favour, will also be looking for clarification from HMRC.
While the certainly provided by the Supreme Court’s judgment in this case is a welcome relief for charity employers in the care sector, it’s clear that there may still be some difficult strategic decisions to be taken.